Concord University School of Law Practice Essay

Transcription

1 Concord University School of Law Practice Essay Instructions: This is a timed practice, and you should take no more than one hour to complete this exercise. Set a timer and allow no interruptions. Before you write, be sure you have memorized all of your definitions and rule statements so that you can recite them in the appropriate place. Remember that you cannot demonstrate your best analysis unless you use the IRAC formula. If necessary, review IRAC before you begin to write. This is closed book and designed to test your ability to recognize legally significant facts, to reproduce on paper the proper rule statements and definitions, and to apply the relevant facts to the elements of the rule in order accurately to predict the legal outcome. You will need these skills to do your best on your final exams as well as on the FYLSE. The best practice is to write an outline or an "issues list" before you begin to write. Under no circumstances should you spend more than 5 or 6 minutes on this overview. Yet, under no circumstances should you ignore it. If you make an issues checklist before you begin, you can go back and check off the issues at the end. On the other hand, if you do not have a checklist, it is too easy to lose your way as your write and totally forget to include an issue you, in fact, actually identified. To lose points through inadvertent omission is a frustrating and unnecessary outcome. Getting Started: Set a timer and write your outline or issues list. Then, write the essay itself. When the timer rings, stop, draw a line across the page and keep going until completion. Note your Total Time clearly in parentheses. This will become an important diagnostic tool to help you improve your skills. Finally: 1. Make and keep clean copies of this essay so you can practice rewriting it, especially if you find you cannot complete it in the required hour allotted. Candidly, you cannot practice writing too many essays. First, you will learn to think more rapidly, a real advantage on finals as well as on the FYLSE. Second, you will begin to recognize common and recurring fact patterns, another incalculable advantage. especially under time pressure. Certainly, if your time is running well over an hour, you should practice writing the same essay several times as your exams approach until you can complete it in time. 2. When you review your answer against the model answers, pay attention to your weakest areas. Do you need to work on memorizing the Rule Statements? Organizing? Applying the Facts? Stating a conclusion without being inconsistent or unsure? Does the structure of the essay wobble from Rule to Conclusion and back to the Issue? Are the facts analyzed before the Rule Statement if provided? Have you omitted the Rule Statement altogether? Above all, remember that the tasks are familiar ones to all students everywhere. Hard work pays off. Cramming does not work. There are no short cuts to memorization. Good luck. 1

2 Nark & Deal Nark, an undercover policeman, suspected that Deal was selling cocaine. Unable to obtain evidence against Deal, Nark locked Juliet, a cocaine addict who bought cocaine from Deal, in a room, held her incommunicado and repeatedly threatened her at knife point with sexual assault unless she arranged for Nark to purchase cocaine from Deal. Juliet called Deal repeatedly over the next three days begging him to sell some cocaine to her cousin. Finally, when she relayed Nark s offer to pay twice the street price, Deal agreed to see what I can do for Juliet s cousin just this one time. Nark met Deal, gave Deal an envelope containing money, and Deal handed over a container of white powder, at which point Nark arrested Deal. Based on the above facts: 1. May Nark properly be convicted of a criminal offense or offenses for any of his actions involving Juliet and/or Deal, and if so of what offense or offenses? Discuss. 2. May Deal properly be convicted of (a) conspiracy with either Juliet or Nark to sell cocaine, and/or (b) attempt to sell cocaine? Discuss. 3. If Juliet is charged as an aider and abetter with attempt to sell cocaine, what defenses should she offer? Discuss. 2

3 MODEL ANSWER FOLLOWS PLEASE COMPLETE ESSAY BEFORE REVIEWING MODEL ANSWERS 3

4 Model Answer: General Materials [Editor s note to students: This was prepared by a Concord Professor. The interrogatories are very specific and should provide the organizational scheme for your answer.] I. Crimes of Nark ISSUES LIST A. False Imprisonment: Intentional unlawful confinement of one person by another. This crime is clear from the facts. B. Kidnapping: False imprisonment plus movement of the victim. Did Nark move Juliet to the place of confinement? If so, he is guilty of the crime of kidnapping. C. Assault 1. Attempted Battery Assault: An unlawful attempt to commit a battery. There are no facts that Nark intended to touch Juliet. 2. Apprehension Assault: Intentionally and unlawfully causing the victim to reasonably fear an immediate battery. Clear from facts. D. Attempted Rape: Starting into the perpetration of a rape with the specific intent to commit the crime. 1. Specific intent: Nark did threaten Juliet with sexual assault. However, it is not clear whether Nark ever intended to rape Juliet, or was merely threatening her to get her to contact Deal. To constitute an attempted rape, it must be established that Nark intended to rape Juliet. 2. Act of perpetration: If the specific intent can be established, Nark s actions in threatening Juliet with sexual assault would most likely be a sufficient act of perpetration. E. Conspiracy: An agreement between two or more persons to commit an unlawful act. Nark merely pretended to agree to buy cocaine from Deal so that he could arrest Deal. Therefore, Nark lacked the requisite mental state to be guilty of conspiracy. F. Defense: Crime prevention. Nark may try to defend his actions by claiming that he was acting to prevent Deal from committing the crime of selling cocaine. However, Nark would be privileged to use reasonable force to prevent the commission of the crime. Nark clearly used excessive force by confining and threatening Juliet with sexual assault. II. Crimes of Deal A. Conspiracy to sell cocaine 1. With Juliet: Juliet was coerced into contacting Deal (see discussion below). As a result of the coercion, she would not be guilty of conspiracy. Since conspiracy requires two guilty minds, Deal could not be guilty of conspiring with Juliet. 2. With Nark: Under the Wharton rule, where a crime requires the participation of two people, an agreement between those two people to engage in that crime cannot support a conspiracy. Since it takes two people to engage in an unlawful sale of 4

5 cocaine, the agreement between Nark and Deal cannot support a conspiracy. In addition, since Nark was a feigned accomplice, the requisite two guilty minds did not exist. 3. Model Penal Code: The Model Penal Code has rejected the Wharton rule, and has adopted the unilateral conspiracy theory. Under this view, since Deal thought he had an agreement with both Juliet and Nark, he would be guilty of conspiracy with both. B. Attempt to sell cocaine: Nark would have two potential defenses to liability for attempt to sell cocaine. 1. Impossibility: Legal impossibility is a valid defense to liability for an attempt crime. However, it was factually impossible for Deal to sell cocaine to Nark, not legally impossible. Factual impossibility is not a defense to attempt liability. 2. Entrapment a. Majority view: If the defendant was predisposed to commit a crime, then entrapment will not be a valid defense. Since Deal had sold cocaine on prior occasions, he was most likely predisposed to sell, so the defense of entrapment would fail. b. Model Penal Code: A minority of states and the Model Penal Code will allow entrapment to be a valid defense if the actions of the government agents would have induced a reasonable person to commit the crime. If the actions of Nark would have induced a reasonable person to try to sell cocaine, Nark has a valid defense. III. Defenses of Juliet: Duress. When a person is forced to engage in criminal activity to avoid a greater evil, that person has a valid defense to criminal liability. Juliet was forced to engage in criminal activity to avoid threatened sexual assault. Therefore, Juliet would have a valid defense to criminal liability. 5

6 Sample Student Model Answers This portion of the Model Answer collects several examples of "likely to pass" essays written by Concord students themselves over the last several years. As you review these Model Answers, please remember that there are often many good ways to write a passing essay "likely to pass" may be a 70 (under Concord's grading system) or it could be much higher; the collected model answers do not distinguish generally a 70 will be "good enough" to pass on the FYLSE none of these samples is presented as a perfect answer they are, however, generally "good enough" to pass you cannot earn points for issues you do not spot, so fact-identification is critical even if you see missed issues or essays that were not as thorough as necessary, please remember that the Bar Examiners will give a holistic grade: they look to the overall presentation missing core issues is generally a problem; but students who miss smaller, associated issues can still score "likely to pass" students should be reassured that perfection is not required many essays note the "time" and sometimes it exceeds the required hour; on the FYLSE, students must write a passing answer in the allotted time there are no extensions your score "likely" or "unlikely" to pass is not a prediction! It is only an indication of one single essay compares at this point in time with the expectations of the Bar Examiners you control your own future! Your scores will alert you to how much time you need to set aside in order to improve. Please use these materials carefully: They are designed to help focus and define your skills of analysis, structure (IRAC), and writing. Certainly, there are other "good" ways to craft a passing answer, so you should not be discouraged. Even the Bar Examiners publish more than one "good student answer." The best approach is to use the various samples to set your feet on the right path. Please note: Some collections of student answers are lengthy, containing many student models, but some are "thin." The differences are a result of how many students actually wrote answers. Some essays come earlier in our sequence and tend to have greater participation and, therefore, more good answers to chose from. Others produced fewer answers from which to chose. In addition, it is possible that Concord students found some essay questions harder than others. Since all of the essays are drawn from former FYLSE questions, this is a realistic experience: some administrations of the FYLSE will be more difficult than others. Over time, we hope to add to our collection. A further note: The student answers were spellchecked and "edited" lightly by adding spaces to make some of the text easier to read. That's all. The materials presented were produced by students under test conditions and are presented "as is." A final note: Often a student will post his or her "time." Clearly, a student who exceeded the time limit might not receive the same assessment if restricted to only 60 minutes. Still, it was decided to include the good answers anyhow. Be alert to this issue because, on the FYLSE, time is strictly enforced. 6

7 Our Best Advice: All-in-all, Concord students participating in CEO / Concord First have seen huge improvements in their skill levels and in their ability to write and organize under time pressure. Above all, our data and experience demonstrate that students who participate in Concord Essay Outreach and Concord First tend to pass the FYLSE in greater numbers than non-participants! Good luck, and keep practicing! 7

8 1. Nark and Deal 1. State v. Nark: False imprisonment is at common law the intentional unlawful confinement or restraint of another person. The defendant must have compelled the victim to where they did not want to go. In this instance Nark compelled Juliet to go into a locked room and held her without communication tot he outside world at knifepoint for three days. The Model Penal Code uses the same criteria, however the penalty is misdemeanor unless the victim was exposed to risk of serious bodily injury and or held in a conditional of involuntary servitude. Nark held Juliet for three days for his purposes and because of being held at knifepoint exposed her to the risk of injury requirement. Kidnap at common law involved the forcible abduction of a person from their own country and the taking of that person to another country. Under modern law it is not longer required that a person be moved from country to country. However kidnap does require the forcible movement of a person into another place. Nark did confine her; the facts do not show if he moved her to get her there into the room, so I am not sure if the burden of proof is met for the requirements of kidnap. Attempted rape: Rape is the forcible unlawful sexual intercourse of a woman without her consent at common law. The law has changed in modern times to not only be against women, men can rape men. In this instance he did not actually rape her, but used the threat of rape to accomplish his setting a trap for the Narcotics dealer, Deal. It s probably a stretch to try to include attempted rape, however if the victim, Juliet felt as though she really could be raped he had her believing that was imminent, possible tests for attempt are met. The culpable mental state was there, he took substantial steps beyond mere preparation, and he had her in a room at knifepoint for three days. We don t know how proximate his actions were, but his actions appear to be very intentional. The strongest defense Nark has is that he was acting as a public official in his role as a police officer. But to meet the test for a defense his actions have to have been reasonable. It seems unlikely that there was not a different way to accomplish his objectives other than locking Juliet in a room for three days at knifepoint with threat of rape. Regarding Nark and Deal I don t think there is anything wrong with the set up of a known Dealer, unless his actions went too far and fit into entrapment. 2. State v. Deal a. Conspiracy: To meet the tests for conspiracy and agreement has to be made between 2 or more people to do an unlawful act. At common law conspiracy is complete upon formation of the agreement, but many states now require an overt act in furtherance of the crime in addition to just an agreement. In this instance with regard to Juliet he and she did have an agreement to arrange for sale of cocaine to her cousin, clearly an unlawful act. Deal did take another step in actually showing up to make the deal. Juliet did another overt act in calling repeatedly, but other than her role in making arrangements she does not appear to have participated past that point. b. Attempt to sell cocaine: Attempt requires a culpable mental state, intent, knowing or purposely, the defendant must know that the certain result is substantially likely to occur. In this case Deal intended to sell cocaine to Juliet s cousin, thus meeting the above test. Substantial step: the defendant has to take a step beyond mere preparation, which is measured by one of several tests. The proximity test, how close tot he act did D. come. In this case he not only attempted to sell cocaine, but actually completed the deal. It seems as though a more appropriate charge would be actual Sale of Cocaine, not attempt. And that attempt is going to be merged with the greater crime. 8

9 If tested by equivocally, did Defendants substantial step manifest intent to complete the act. As stated above he did complete the act, thus intent was there. The Model penal Code uses a little of both that either a substantial step is taken or the act is corroborative of a criminal purpose, clearly Deal in completing the Deal meets these tests. But stated above should be charged with actual sale and not attempt due to merger. 3. State v. Juliet As an aider and abettor the question is pointing to Juliet being charged as an accomplice. An accomplice is one who aids and abets, encourages or assists another to perform a crime. Mere presence is not enough at the crime scene. If they have the required mental state they can be liable for the crime committed by another that are the natural and probably consequence of their actions. Juliet did arrange to make the deal however extenuating circumstances make it unlikely she could be held liable for her actions. Defenses: Duress: duress is the threat or actual use of force by a 3 rd person which induces reasonable fear of immanent death or serious bodily injury and induces defendant to commit a crime. Under the Model penal Code a person of reasonable firmness in the same situation would not have been able to resist. In this case, Juliet was placed in a room by Nark for three days held at knifepoint not allowed to communicate with any one in the outside world., and threatened with rape. A reasonable person would probably have made the phone calls required to get out of the room. 9

10 2. Nark v. Deal A. State vs. Nark 1) Assault Under criminal law, a defendant may commit criminal assault by either 1) attempting to commit battery, or 2) intentionally causing the victim to fear an immediate battery. Here, Nark s assault is intentionally causing fear or battery of Juliet, because Nark acted in way that, and with requisite intent to, cause Juliet, to reasonably fear, an immediate battery, because Nark repeatedly threatened Juliet at knife point with sexual assault. Therefore, Mark may be charged with assault. Aggravated assault Under criminal law, aggravated assault is especially deadly assaults (manner of commission or use of a deadly weapon) or unlawful purpose (such as with intent to commit rape or murder). Here, Nark used deadly weapon of knife to threat Juliet with sexual assault. Therefore, Nark may be charged with aggravated assault. Rape Under criminal law, rape is unlawful sexual intercourse with a woman without her consent. Here, if Nark committed a unlawful intercourse with Juliet during his sexual assault, he may be charged rape, because the modern trend is to require actual consent of the woman, Nark s defense of consent is invalid, if he raise the defense of consent, because he obtained the consent from Juliet by threat of immediate serious bodily injury, and he subjected Juliet in false imprisonment. 2) False Imprisonment Under criminal law, false imprisonment is an intentional unlawful confinement of a person. Here, Nark acted intentionally because he locked Juliet in a room, and Juliet was confined in the room, and the confinement was unlawful because Nark did not have privilege to lock Juliet in the room, because he suspected Deal was selling cocaine. Therefore, Nark may be charged with false imprisonment. 3) State vs. Deal 4) Conspiracy Under criminal law, conspiracy is an agreement between two or more person for an unlawful purpose. Here, there was an express agreement between Deal and Juliet, because Deal agrees to see what he could do for Juliet s cousin s need to buy cocaine from him. And the agreement was for an unlawful purpose of selling the drug to Juliet s cousin. 10

11 5) Deal s defense Two Guilty Minds: Two guilty minds, under traditional, is deemed as a bilateral conspiracy approach, that a conspiracy requires at least two guilty minds. Here, Juliet acted under force under threat of Nark, she lacked the requisite mutuality to the consent to form the unlawful agreement. Therefore, Deal may not be charged with conspiracy under traditional approach, because there were not two guilty minds. Under a unilateral approach (model penal code recognize), only one guilty mind is necessary; thus a defendant who joins another who is only pretending to commit the crime may nonetheless be guilty of conspiracy. Here, Deal joined Juliet, who is only pretending to commit the crime, may nonetheless be guilty of conspiracy. Therefore, Deal may be charged with conspiracy under this unilateral approach. 6) Attempt to sell cocaine Attempt is the crime of taking a substantial step with a specific Intent of committing a criminal act. Here, Deal had the specific intent to commit a crime of selling cocaine, because he agreed to see what he could do for selling the drug to Juliet s cousin. And Deal entered the zone of perpetration of selling the drug because received the envelope containing money from Nark and handed over a container of white powder to Nark. Factual impossibility Deal may raise defense of factual impossibility, because Nark was not Juliet s cousin, and Nark was an undercover policeman. But the facts unknown to Deal at the time is no defense to a charge of attempt. 7) Entrapment Deal may also raise the defense of entrapment. Under traditional view, he may not succeed in asserting this defense, because he was predisposed to commit the crime. Under modern view, Deal may or may not succeed in asserting this defense, it depends on jury s finding whether the actions of Nark sufficient to have induced a reasonable person to commit the crime of selling the drug to receive twice the street price. 8) Julie s defenses 9) Coercion Juliet may raise the defense of coercion that she acted out of necessity or out of coercion, because Nark subjected her to false imprisonment, and aggravated assault. Here, the greater evil doctrine may apply. 10) Entrapment. Supra. 11) State v Nark 1. Criminal Assault on Juliet? Criminal assault is an attempted criminal battery (an unlawful use of force against the person of another), or an intentional and unlawful attempt at causing victim to reasonably apprehend an imminent battery. Nark, a policeman, has the authority to arrest Juliet for possession of cocaine, and he has authority to use reasonable force in doing so. Here, Nark intends to cause an apprehension of harm when he points the knife at her and threatens her with a sexual assault. It s reasonable and imminent because the knife is at 11

12 her throat. He does this unlawfully because by locking in her the closet he has exceeded the scope of his authority and used unreasonable force in her arrest. Therefore Nark can be charged with criminal assault. 2. Crime of False Imprisonment of Juliet? False Imprisonment is the unlawful detention or confinement of another where defendant acts intentionally. A good motive does not matter. Here Nark intends to confine Juliet because he wants her to help him set up Deal. The confinement is unlawful because Nark only has the authority to arrest Juliet, not to detain her for three days. It is no defense that Nark also intends to do a good thing by attempting to arrest a drug dealer. Therefore Nark can be charged with False Imprisonment. 3. Crime of Kidnapping Juliet? Kidnapping at common law is the false imprisonment (supra) of another where the victim is also moved out of the country, Modernly, any significant movement will do, as will secreting the victim in a place for the purpose of getting a ransom. Here Juliet is not moved, and although she is secreted, it is not to get a ransom, but rather, to aid Nark in his attempt to arrest Deal. Therefore Nark should not be charged with kidnapping. 4. Solicitation of Juliet? Solicitation is the crime of urging, encouraging, or commanding another to commit a crime, with the specific intent that the target crime actually be committed. Here Nark commands Juliet to enter into a conspiracy (an agreement between two or more parties to commit an unlawful act) to sell cocaine with Deal. He intends for the target crime of conspiracy to occur so that he may arrest Deal. However, because Juliet is acting under duress, Nark may claim that Juliet never conspired with Deal because she lacked the specific intent necessary. This will not be a defense because Nark has the intent for the conspiracy to be effective. Therefore that defense could only be available to Juliet. Therefore Nark could be charged with solicitation of Juliet. 5. Solicitation of Deal? Solicitation. Defined supra. Defendant may use an innocent agent, either an unwitting agent or through coercion, to solicit a crime, and defendant can still be charged with the solicitation. Here Nark coerces Juliet to conspire with Deal to sell cocaine. Because Nark is the person with the volition who is urging and encouraging Deal to sell cocaine, and Juliet is merely his agent in this scheme, Nark is urging that the target crime be committed. And because Nark specifically desires that Deal try to sell him cocaine, Nark has the specific intent required. Therefore Nark may be charged with solicitation of Deal to sell cocaine. 12) State v Deal 6. Conspiracy with Juliet to sell Cocaine? 12

13 Conspiracy at common law is an agreement between two or more parties to commit an unlawful act, followed by any overt act in furtherance of the conspiracy, with specific intent that the target crime be committed. Here Deal finally agrees with Juliet to sell cocaine to her cousin. That is an unlawful act. However, because Juliet is acting under duress, there is no real agreement between them, as the duress vitiates the specific intent on her part to commit the crime. Only in a minority jurisdiction that recognizes the unitarian approach (as in the MPC) to conspiracy, where only one party need to actually intend for the crime to be committed, would Deal be charged with conspiracy. Therefore it is unlikely that Deal will be charged with conspiracy with Juliet. 7. Conspiracy with Nark to sell Cocaine? Conspiracy. Defined supra. Here Nark is the real mind that forms the agreement with Deal to sell cocaine. Both Nark and Deal, eventually, agree to the sale of cocaine and Deal performs an overt act by obtaining the container with the white powder. Therefore Deal may be charged with conspiracy with Nark, although he will have a defense of entrapment. B. Entrapment. In the majority view, entrapment is an affirmative defense when it is shown that defendant was not pre-disposed to commit the crime, but only did so because of pressure and wrongful tactics by the police or government officials, or their agents. In a minority of courts entrapment is found when the police use tactics that are so outrageous they would induce a hypothetical average person to commit the crime. Here in the majority view it cannot be said that Deal was predisposed to commit the crime because for three days he rejected the idea, and only gave in when offered twice the street price. Under the minority view Nark s tactics of committing crimes against Juliet and coercing her to solicit Deal would qualify as outrageous and could be seen as enough to induce a hypothetical man to commit the crime, perhaps out of sympathy for Juliet. Therefore Deal should be successful in raising the defense of entrapment. 8. Attempt to sell Cocaine to Nark? Criminal attempt occurs when defendant has specific intent to commit a crime, and he commits an overt act that is a substantial step toward the commission of the crime that goes far beyond mere preparation. What constitutes a substantial step can be tested by proximity to the crime, and whether or not defendant has come dangerously close to completing the crime. Here Deal has brought the cocaine to Nark and accepted money for it. The crime is only thwarted because of a fact (that Nark is an officer) that Deal was unaware of that made commission impossible. This factual impossibility is no defense to attempt. Therefore Deal can be charged with attempt to sell cocaine. However, Deal will again raise entrapment as a defense and for the same reasons as above should be successful. 13) State v Juliet 9. Attempt to sell Cocaine as an Accomplice? 13

14 An accomplice is one who aids and abets another in the commission of a crime by offering help or encouragement and otherwise in lending support. An accomplice need not be at the scene of the crime, but must intend for the crime to be committed. Here Juliet encourages Deal to commit the crime, but there is no evidence that she intended the crime to be committed. Because she was under duress from Nark, she only wanted Deal to agree to commit the crime. Therefore Juliet should not be charged as one who aided and abetted the attempt to sell cocaine. This essay was actually finished in an hour! However, I spent about ten minutes going back and underlining the key elements. This is also the form I wanted to use for the essay with Henry and Bakery, but somehow I wasn t able to do it, perhaps because I ve practiced this form with crimes essays recently. 14

15 3. Nark and Deal Time started: 12:37, Time finished: 13:30, Total time: 53 minutes I. Nark Charges Involving Juliet and/or Deal A. Criminal False Imprisonment (CFI). CFI means that defendant intentionally or recklessly confined the victim to a bounded area without a safe escape route against the victim s will. Here, Nark acted purposely or knowingly (intentionally) when he locked Juliet in the room. Unless there was a completely safe escape route, such as a window that Juliet could have opened and safely climbed out, the room was a physically bounded area on all sides and without a safe escape route. Confinement can occur either by force or threat of force, and here Nark threatened Juliet at knife point, so if she couldn t escape while Nark was, for example, asleep, and since she couldn t ask for help (she was put incommunicado), she was confined and against her will. 1. Defenses. Nark will claim that he acted out of necessity, which means that he acted in a case of emergency and for the purpose of preventing a greater evil, namely cocaine selling by Deal. He will also claim that he acted for the purpose of preventing a crime. A law officer can use the force he reasonably deems necessary to prevent a felony or misdemeanor breaching the peace from occurring in his presence, but never deadly force. Here, Deal s drug dealing, if true, was on-going and not a state of emergency. Also, threatening Juliet at gun point could have harmed her physically and mentally (sexual assault), so Nark will not prevail on claiming that he chose the lesser of the evils (assault against Juliet v drug deals by Deal). Nark is liable for CFI. B. Assault. Assault is either (a) the intentional putting the victim in reasonable apprehension of an imminent battery or (b) an attempted battery, depending on jurisdiction. Battery is the intentional or reckless harmful or offensive touching of another s person. Here, Juliet must have been in apprehension, of being offensively or harmfully touched if Nark had gone ahead with the threatened sexual touching of her. The threat was imminent, because it was at knife point, and may therefore qualify as aggravated assault. The elements under (a) are fulfilled. An attempt, under (b), requires that Nark had the specific intent to commit the offense (battery) and that he came within close proximity. Specific intent means to act purposely or knowingly. Here, Nark acted with a conscious object (purposely) of getting Juliet s help, but it is not clear if he had the specific intent to actually commit the assault, had Juliet continued to say no. However, he must have known to substantial certainty (knowingly) that Juliet would be put in fear of and that a harmful or offensive touching might occur if he even nudged Juliet with the knife. He therefore had specific intent for battery. Close proximity (common law) means that Nark took the very last step necessary or that he believed necessary to commit the offense. Here, Nark repeatedly threatened Juliet at knife point, which should be sufficient, i.e. actually doing the sexual assault should not be required as a last act. Also, under the equivocality test, Nark s acts show to a reasonable person unequivocally that he intended to go ahead with a battery; no other interpretation of his conduct is reasonable. Under MPC, it suffices if defendant took a substantial step towards the commission, which occurs sooner than close proximity, so Nark s acts satisfy the MPC substantial step element as well. Under (b), Nark would also be liable for assault. C. Attempted Rape. Although rape is general intent crime, attempt is specific intent crime. Here, there are no facts to indicate that Nark had the specific intent to go ahead with a sexual assault, or rape, even if Juliet blankly refused. Absent specific intent, Nark is not guilty. D. Extortion. Extortion means larceny under threat of future force. Here, Nark acted for the purpose of getting Juliet s assistance in setting Deal up; not for the purpose of larceny (the 15

16 trespassory taking and carrying away of the tangible personal property of another). Since Juliet didn t give Nark any personal property, Nark is not guilty. E. Conspiracy to buy cocaine. Nark may be guilty of conspiracy to buy/sell cocaine. Refer II below. Although Nark will argue that he never intended to or did agree, he went beyond the scope of his authority when he threatened Juliet and therefore had a sufficient criminal purpose in his actions against / with Deal to prove a unilateral agreement under MPC, even if Deal is found not to have actually agreed either. See II below. II. Deal. A. Conspiracy to sell cocaine. Conspiracy, at common law, is an agreement between two or more persons to commit an unlawful act with intent that the act be committed and with a slight overt act in furtherance. Under MPC, a unilateral agreement suffices, i.e. defendant s criminal purpose and his acts in promotion to complete the crime suffices even if a second person never actually agreed. Under MPC, the act must also be a crime, not just an unlawful act. 1. With Juliet or Nark. a. Agreement. Prosecution will say that Deal agreed to see what he could do for Juliet s cousin, and thereby from the circumstances of Juliet s repeated begging him to sell cocaine must have agreed to the drug deal, even if his words did not explicitly say so. Deal will argue in rebuttal that he realized from Juliet s insistence that something was up and that he simply said what she wanted to hear or brushed her off ( I will see what I can do ) to get her to stop bothering him. He will also argue that he had no intent to sell drugs, because there is no proof that the powder was cocaine. Any other drug or substance is insufficient when the charge is specifically cocaine. Deal will also argue that he didn t conspire, because there was no agreement between two: Juliet was coerced by Nark (did not agree) and Nark was only pretending for purposes of catching Deal (did not agree). If the common law definition of agreement applies, Deal will not be guilty even if he did agree, but under the unilateral MPC agreement, his criminal purpose, especially if the powder is indeed cocaine, will suffice for conspiracy. b. Slight Over Act in Furtherance. Nark and Deal met, and Deal handed over and envelope. Both suffice as overt acts in furtherance of the conspiracy. In some jurisdictions, the slight over act may not be required, especially if selling cocaine is listed as an inherently dangerous felony. Conclusion: Deal s liability for conspiracy depends largely on whether the bilateral or unilateral agreement applies (common law or MPC). B. Attempt to sell cocaine. As discussed in I above, Deal must have had the specific intent to sell cocaine to be convicted and he must have come within close proximity or taken a substantial step. The unknown nature of the white powder was it actually cocaine and the vagueness of his purported agreement all count in Deal s favor of proving that he lacked the specific intent to sell cocaine. If Nark arrested Deal before the transaction had gone far enough to be deemed within close proximity, Deal may go free unless MPC s substantial step applies, especially if the powder is cocaine. 1. Impossibility. Assuming that the powder wasn t cocaine, Deal will argue that it was legally impossible for him to sell cocaine. Legal impossibility is a complete defense to attempt. However, prosecution will then argue that if Deal thought that the powder was cocaine, even if it wasn t, we have a case of factual impossibility (not a defense to attempt), because had the facts been as Deal believed them to be, he would have committed the crime charged. The outcome depends on the nature of the powder. C. Entrapment defense. To all charges, Deal will argue that he was entrapped. Entrapment means that the activity originated with law enforcement (here: Nark) and that, under the majority rule, defendant was predisposed to commit the crime, and under minority, that an innocent person would have succumbed to the entrapment. Assuming that Deal had some history of drug dealing, he could prove that 16

17 he was predisposed to selling drugs and thus entrapped under majority. He will have difficulty under minority, because an innocent person would not agree to buy/sell cocaine under the circumstances unless such a person realized the true nature of Juliet s dilemma and her situation, but in that situation, a better thing to do would have been to go to the police and get help. The prosecution will shoot down Deal s defense by saying that Nark went beyond the scope of his duties as a law enforcement officer and that therefore, the activity did not originate with the law. If so, there will be no entrapment defense at all. III. Juliet Defenses to Accomplice Liability for Attempt to Sell Cocaine A. Elements of accomplice liability. An accomplice is one who aids and abets, i.e. helps or encourages, another to commit a crime with intent to give and with intent for the crime to be committed. Here, Juliet will argue that she had no intent to help Nark or Deal to sell or buy cocaine, nor did she intent for the sale to be committed. Her arguments rebutting the prima facie elements of accomplice liability will likely succeed. In addition B. Defenses. Juliet will argue that she was subject to coercion and duress. Duress is where the victim s free willpower was overcome by the threat of force to the victim s person. Here, Juliet was not a willing participant and called Deal only because she was under threat by Nark. Juliet will also argue necessity, i.e. that she was in a situation of emergency and chose the lesser of the two evils presented to her: sexual assault and injury from Nark s knife (avoided) and the sale of drugs. Both are complete defenses to liability and she will prevail on both. 17

18 4. Nark & Deal I. Nark s crimes against Juliet. Nark may be charged with crimes of assault, kidnapping (maybe) and false imprisonment, solicitation, conspiracy against Juliet. A. Assault. An assault is an attempt to commit battery, or an intentional creation of a reasonable apprehension of an imminent bodily harm. Here, when N threatened J with a sexual assault, J thought in her mind that she was going to be raped at knife point. N committed an assault. B. False Imprisonment (FI). For FI, there must be the unlawful confinement of a person without their consent. 1. Confinement. For confinement, the victim must be compelled to go to some place where they do wish to go or remain in a place where they do not wish to be. Here, J was locked in a room and threatened at knife point without communication to anyone for 3 days. J was confined. 2. Unlawful. Confinement is unlawful unless it was done with the victim s consent or authorized by law. Here, it appears that J did not give her consent to be confined. I doubt whether this confinement was authorized by law but the facts are a bit ambiguous on this point. I doubt whether law enforcement is allowed to confine a person to a room, hold them at knife point and threaten them with sexual assault, unless it is at police headquarters for interrogation of a crime suspect and then the police are NOT allowed to threaten them with sexual assault and hold a knife on her. It seems like this confinement was unlawful. 3. Lack of consent. If the victim s gives their consent to be confined, then it would negate FI. Here, there are no facts to suggest that J gave her consent. N is guilty of FI. C. Kidnapping. For kidnapping there must be a movement of the victim, or concealment of the victim in a unknown place. Here, the facts do not state whether the victim was moved or concealed in an unknown place. Nark might have locked J in a room in the house where she lived. If so, this would not constitute kidnapping. But, if she was moved to another place where no one but N knew where she was, then N was guilty of kidnapping. D. Solicitation. For solicitation, one must encourage, aid, counsel or command another to commit a felony with the specific intent that the person solicited commit the felony. Here, N commanded J to place phone calls to D in order to order for someone else (N) to buy cocaine. N did Command J to place the call, although it was against her free will because she was being held at knife point. There is no solicitation. E. Conspiracy. Conspiracy requires an intent between 2 or more people to enter into an agreement with the intent to achieve the objective of the agreement. Here, N had the intent to buy cocaine from D, entered into an agreement with D to buy cocaine, and actually bought cocaine from D.. However, N was a member of a protected class (police) who cannot be guilty of the crime. There is no conspiracy between N & D to buy cocaine CONCLUSION. N is guilty of assault, and FI against J and maybe kidnapping. N is not guilty of solicitation with regard to J, nor is he guilty of conspiracy to buy cocaine from D. 18

19 II. D guilty of conspiracy involving J/N, and guilty of attempt> A. Conspiracy. Conspiracy, as stated above, is the intent to enter into an agreement between 2 or more persons with the intent to achieve the objective. Conspiracy requires a specific intent. Here, D did have the specific intent to sell cocaine to N and intended to achieve the objective when N handed D the money and D handed N the drugs. D is guilty of conspiracy to sell cocaine. B. Attempt. To be found guilty of attempt to cocaine, there must be specific intent and an overt act beyond mere preparation. 1. Specific intent. For intent, the D must have the intent to perform an act and obtain a result that would constitute the crime. Here, D told J that he would sell cocaine to N when he said he would see what I can do just this one time. D had the specific intent to sell cocaine. 2. Overt Act. The D must have committed an overt act beyond mere preparation for the offense. Here, by handing the cocaine to N in exchange for money D has met the overt act s proximity test how close he came to completing the offense; the equivocality test that the D had the unequivocal intent to commit the crime; and the MPC test a substantial step in the culmination of the crime. 3. Defenses. The defenses to attempt are factual and legal impossibility. a. Factual impossibility. Factual impossibility is no defense (anymore) to attempt. Factual impossibility means that it was impossible to complete all the things the D had intended to do. Here, this does NOT exist because everything D had intended to do he completed. b. Legal impossibility. The means that the crime that the D thought was illegal in the 1 st place actually was legal. Here, selling cocaine is illegal anywhere (at least in U.S. jurisdictions). 4. Entrapment. D can assert the defense of entrapment if he van show that the criminal act originated with law enforcement officers, and he was in no way predisposed to commit this crime. Here, the police only provided the opportunity to a drug dealer to sell the police drugs by a Dealer who was ready to commit the act anyway. III. Juliet aider and abettor with attempt to sell cocaine. A. Aiding and abetting. An accomplice, or aider and abettor is one who aids, counsels, or encourages the principal to commit the crime. Here, J was locked in a room and threatened with assault if she did not cooperate with the police. J must have had the intent to aid and abet. Here, J did not seem to have the intent because she was being held at knife point.. 19

20 5. Nark v. Deal A) State v Nark 1) False Imprisonment of Juliet Intentional unconsented confinement of another person by barriers, force, intimidation or authority, where confined party is unaware of any reasonable route of escape. Intent Intent is desire or substantial certainty. Nark locked her up deliberately to force her to help in his plan. Confinement of Route of Escape Nark locked her in a room and held her incommunicado. The locked door was a barrier. Doesn t not appear to be any route of escape. Defenses Nark will contend he confined her by his authority. He had no authority to confine her under these circumstances. Nark guilty of false imprisonment. 2) Assault of Juliet Intentionally causing another to apprehend an imminent harmful or offensive attack, or an attempted battery. Intent Intent is desire or substantial certainty or an attempted battery. Here, Nark was deliberately threatening Juliet to gain her cooperation. Apprehension of Harmful Attack Causing apprehension is causing one to fear or to foresee an imminent harmful attack. Here, Nark threatened her with a sexual assault at knife point repeatedly. The threat sounds conditional, i.e. unless she arranged, however the fact that she was repeatedly calling it is clear that Nark was threatening her and then she would make the call. The threats were imminent and apprehended by Juliet. Defenses: None Nark is guilty of assault. 3) Solicitation of Juliet to commit a crime Solicitation is the asking, requesting, counseling or commanding of another to commit a crime with the intent that the crime be committed. The crime is accomplished in the asking. Here, Nark in threatening Juliet was commanding her to make the call to arrange the sale of cocaine. He wanted Juliet to convince Deal to sell him cocaine. Assuming arranging a sale of cocaine is a crime, Defenses: Authority. He probably has the right to make this kind of an arrangement as a police officer. Nark is not liable for solicitation. 20

21 4) Nark as Conspirator with Juliet and Deal Conspiracy is the crime when two or more people make an agreement to commit a crime with the specific intent to commit the crime. Conspirators are liable for all foreseeable completed crimes done in furtherance of the conspiracy. Conspiracy does not merge into the completed crime. Many Jds require an overt act. Here, When Juliet, under duress agreed to call Deal she joined a conspiracy with Nark. Juliet s call to Deal was an overt act. Defenses: Nark as undercover officer, feigned his intent to be part of a criminal conspiracy to trap Deal. Nark will not be a conspirator. B) State v Deal 1) Conspiracy Conspiracy Supra Here, Deal and Juliet formed an agreement that Deal would sell cocaine to her cousin. An overt act was committed when Deal met Nark to make the exchange. At Common Law a conspiracy must be bilateral, and since Juliet was not a willing participant because she was under Duress, a conspiracy agreement was not formed. Under the Modern Penal Code a conspiracy may be unilateral in which case Deal could be convicted of conspiracy even though Juliet was not a willing conspirator. Under the Wharton rule, when a sale of narcotics takes place, in order to have conspiracy in addition to the crimes of buying/selling narcotics or dangerous drugs, there must be at least one more party to the crime. Here, Nark is that third party. 2) Attempt to sell cocaine to Nark Attempt is an act in perpetration of a crime with the intent that the crime be committed. The object crime here is selling of cocaine. At common law the test is whether the party got dangerously close, and whether their acts were unequivocally interpretable as acts that were leading to the commission of the crime. Under the MPC a substantial step was required. Act Here, Dave brought the cocaine to Nark and took the envelope of money. This actually would have been a completed crime had Nark not been an undercover officer. Dave s act was not equivocal. As to common law Dave went beyond dangerously close. Under MPC the exchange of drug (assuming the white powder is cocaine) for money would qualify as a substantial step. Intent to commit the crime Dave agreed to see what I can do.just this one time. Then, he brought the container of white powder to Nark and exchanged it for the money. His actions spell intent. Defenses Entrapment: Two Versions Entrapment is a defense where a crime is initiated by the police and the defendant acquiesces to the crime but did not without the persuasion of the police have a predisposition to commit the crime. Here Deal had a pre-disposition to buying/selling cocaine. He had been a dealer and Juliet was a customer. 21

22 Entrapment is also a defense in some jurisdictions where the police conduct is the focus and it can be shown that the police overreached in getting the defendant to commit the crime. Here, Deal would argue that Nark overreached and forced Juliet to persuade Deal. Nark did overreach as far as his authority, however, Deal willing participated in attempting to sell cocaine. No defense. Dave guilty of attempt to sell cocaine. C) State v Juliet 1) Accomplice to crime of selling cocaine An accomplice is one who aides and abets the commission of a crime with the intent that the crime be committed. An accomplice is liable for all completed crimes that were foreseeable as a result of the commission of the object crime. Here, Juliet called Deal repeatedly, and finally arranged for Deal to sell Cocaine to Nark. Defenses 1) Duress is a defense to a crime where one is coerced by threat of physical harm. Here, Juliet was threatened repeatedly by Nark. Although she was an addict who had bought cocaine from Deal she apparently knew Nark was a cop and had to be forced to make the arrangement. Juliet it appears would not have made the arrangement without Nark's threats. Therefore Duress would be a defense to Juliet being an accomplice to the crime of selling cocaine. Entrapment: Supra Here Juliet had a pre-disposition to buying/selling cocaine but she wasn t cooperating willingly, she was being forced into committing the crime. Entrapment should be a defense if she is charged with the crime of attempting to sell cocaine. Entrapment is also a defense in some jurisdictions where the police conduct is the focus and it can be shown that the police overreached in getting the defendant to commit the crime. Here Juliet would have a defense. Nark definitely overreached in his efforts to make this crime happen. End 60 minutes 22